United States District Court, S.D. Alabama, Southern Division
WM MOBILE BAY ENVIRONMENTAL CENTER, INC., Plaintiff/Counter Defendant,
THE CITY OF MOBILE SOLID WASTE AUTHORITY, Defendant/Counterclaimant.
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
action is before the Court on the Motion for Writ of Replevin
and Motion to Hold Defendant in Contempt filed by Plaintiff
WM Mobile Bay Environmental Center, Inc. (Plaintiff) (doc.
222) and the Objection and Motion to Dismiss filed by
Defendant City of Mobile Solid Waste Authority (the
Authority) (doc. 224).
Court previously held as a matter of law that the Authority
breached the Contract with Plaintiff “by delivering
certain City of Mobile waste to the Dirt, Inc.
landfill” (doc. 125, p. 32, Order on summary judgment).
The Court found that the Contract contained the following
5.2 Authority's Responsibility. The Authority
agrees to assist the Contractor in obtaining any and all
permits, licenses, and approvals necessary to open and
operate the New Landfill and, once the New Landfill has been
opened, to dispose at the New Landfill of all the City of
Mobile Solid Waste generated within the Service Area.
1.32 Mobile Solid Waste Stream. . . . During the
term hereof, the Authority agrees to have delivered all
Mobile Solid Waste Stream only to the Landfill or the
Transfer Station and to no other sites, for disposal by
(Doc. 125, citing Doc. 29-1, Section 5.2; Section 1.32).
upon these provisions, as well as the definitions of waste
and refuse found in the Contract, the Court determined that
the “force and effect of Section 5.2 and Section 1.32
is that SWA has breached the Contract by delivering certain
City of Mobile waste to the Dirt, Inc. landfill.” (Doc.
125, p. 32) The Court reserved the issue of damages for trial
(id.) and the jury awarded Plaintiff $3, 000, 000.00
(doc. 171-1, Verdict). The Court entered judgment in favor of
Plaintiff (doc. 173). After addressing several post-trial
motions, the Court entered an amended judgment as to other
counts in the second amended complaint, but specifically
stated that all provisions of the earlier judgment would
remain in effect (doc. 204). The judgments were affirmed on
appeal (doc. 221). The judgments are money judgments in that
they adjudge the jury's award of money damages to
Plaintiff. The Court did not make any declaratory judgment as
to any future issues of whether the Authority had the right
to possession or title of the City of Mobile solid waste
upon Rule 64 of the Federal Rules of Civil Procedure,
Plaintiff moves the Court to issue a Writ of Replevin to the
Authority for possession of the entire City of Mobile's
solid waste stream. Plaintiff alleges that the Authority
continues to divert part of the solid waste stream to another
landfill. Plaintiff argues that the City's “Solid
Waste Steam is tangible property in the possession of the
Authority to which [Plaintiff] has an immediate right
… pursuant to the parties' Contract, and that is
subject to replevin, pursuant to Federal Rule of Civil
Procedure 64.” (Doc. 222, p. 2) In support, Plaintiff
provides the Affidavit of its Vice President and a copy of
the letter demanding possession (doc. 222-1, doc. 222-2).
According to the proposed Writ of Replevin, the U.S. Marshal
would be directed to take possession of the City's entire
solid waste stream and deliver it to the Plaintiff (doc. 222,
response, the Authority raises three arguments. First, the
Authority argues that the Court did not order prospective
relief from any future acts that may be a breach of contract,
but instead the Plaintiff was awarded damages based upon
allegations of past breach of contract. Second, the Authority
argues that relief under Rule 64 is not available because the
action has concluded. The Authority asserts that the relief
sought should be obtained through a new action for execution
of a judgment instead of a post-judgment motion. The
Authority points out that Plaintiff “does not seek to
secure the satisfaction of a potential judgment” as
contemplated in Rule 64. Last, the Authority argues that
Plaintiff cannot meet the necessary elements of an action for
replevin because it cannot show that it first had possession
of the solid waste stream and that the Authority now has
possession. The Court agrees to each point.
provides that at the “commencement of and throughout an
action” state law remedies are available for seizure of
“property to secure satisfaction of the potential
judgment”. Fed.R.Civ.P. 64(a) (emphasis added).
Overall, Rule 64 codifies “long-settled federal law
providing that in all cases in federal court, whether or not
removed from state court, state law is incorporated to
determine the availability of prejudgment remedies
for the seizure of person or property to secure satisfaction
of the judgment ultimately entered.”
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto.
Truck Drivers, Local No. 70 of Alameda Co., 415 U.S.
423, 436 n.10, 94 S.Ct. 1113 (1974) (emphasis added).
Replevin is a remedy specifically listed in Fed.R.Civ.P.
64(b). The Rule states in relevant part that “[t]he
remedies available under this rule include [replevin]
… however designated and regardless of whether state
procedure requires an independent action[.]”
Fed.R.Civ.P. 64(b). At least one federal court has
interpreted Rule 64(b) to mean that replevin is available as
a remedy in an action even though state procedures may
require an independent action. Fed.R.Civ.P. 64(b). See
Regions Commercial Equip. Fin., LLC v. Performance Aviation,
LLC, 2017 WL 354275, at *5 (S.D.Miss. Jan. 24, 2017)
(Regions filed a verified second amended complaint, which
contained a specific claim for replevin).
Rule 64 requires the application of state procedures to
enforce the remedies available. In that regard, Ala. R. Civ.
P. 64(a) states that “[a]t the commencement of and
during the course of an action, all remedies providing for
seizure of … property for the purpose of securing
satisfaction of the judgment ultimately to be entered in
the action are available under the circumstances and in
the manner provided by law except that there can be no
seizure of property through judicial process prior to the
entry of judgment other than by a judicial officer acting
pursuant to the procedure set forth in paragraph
(b)[.]” Ala. R. Civ. P. 64(a) (emphasis added).
Paragraph (b) sets out the procedure to follow
“[w]henever any provision of law is invoked through
which there is an attempt to seize property through judicial
process prior to the entry of judgment[.]”
Fed.R.Civ.P. 64(b) (emphasis added).
Rules address pre-judgment seizure of property for
satisfaction of a potential judgment to be entered in the
action. That is not the case before the Court. Judgment has
been entered. Plaintiff has filed a post-judgment motion for
Writ of Replevin, which appears contrary to these Rules.
Plaintiff has not provided any case law to show that even
though the Rules indicate that the Writ of Replevin is
available pre-judgment, the Writ is also available
assuming for purpose of this motion that Plaintiff may bring
a post-judgment motion, Ala. R. Civ. P. 64(b)(1) requires
that an application for Writ of Replevin should be made by an
affidavit that contains
(A) Description of Property. A description of the claimed
property that is sufficient to identify the ...